United States v. Mosqueda-Beltran , 56 F. App'x 444 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 02-1245
OSCAR MOSQUEDA-BELTRAN,
D.C. No. 01-CR-63-N
also known as Oscar Mosqueda-
(D. Colorado)
Castillo, also known as Oscar Robles-
Cornejo, also known as Antonio
Robles,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and O’BRIEN, Circuit Judges.
Oscar Mosqueda-Beltran, an alien deported after being convicted of an
aggravated felony, pled guilty to a charge of being found in the United States in
violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced by the district court
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
to seventy-seven months’ imprisonment and three years of supervised release,
(ROA IV at 9, 11), and he now appeals his sentence. We exercise jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and AFFIRM.
On appeal, counsel for Mosqueda-Beltran filed an Anders brief and moved
to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967)
(allowing attorneys who believe an appeal to be frivolous to advise the court of
that fact, request permission to withdraw from the case, and submit a brief citing
to those portions of the record that arguably support the appeal). In the Anders
brief, counsel asserts that the defendant’s sentence was not imposed contrary to
law, as a result of an incorrect application of the sentencing guidelines, or in
excess of the applicable guideline range. (Aplt. B. at 8.) Mosqueda-Beltran was
afforded an opportunity to respond to the Anders brief, but failed to do so. (Ct.
of App. Dkt. #20.)
We have fully examined the proceedings as required by Anders, id., and
conclude that the defendant’s appeal is wholly frivolous. The district court
properly calculated the offense level and criminal history category. (ROA IV at
6–7; ROA V at 2, 4–12.) The sentence imposed was the low end of the applicable
guideline range, which is what the United States recommended as part of a plea
agreement with Mosqueda-Beltran. (ROA IV at 13.) In this case, the district
court’s sentence was neither contrary to law nor an incorrect application of the
-2-
sentencing guidelines. Therefore, 18 U.S.C. § 3742(a)(1) and (2) are not
implicated.
We can find no issues in this case that might properly be the subject of an
appeal. Accordingly, counsel’s motion to withdraw is GRANTED and
Mosqueda-Beltran’s conviction is AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-